DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

PETRI POSITIVE PEST CONTROL, INC., a Florida corporation,

Appellant,

v.

CCM CONDOMINIUM ASSOCIATION, INC., a Florida non-profit 

corporation, d/b/a COUNTRY CLUB MANOR CONDOMINIUM 

ASSOCIATION,

Appellee.

No. 4D18-1290

[May 1, 2019]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Marina Garcia-Wood, Judge; L.T. Case No. CACE13-

27168(18).

Thomas L. Hunker of Cole, Scott & Kissane, P.A., Plantation, for 

appellant.

Steven J. Hammer and Zane Berg of Schlesinger Law Offices, P.A., Fort 

Lauderdale, Celene H. Humphries and Maegen P. Luka of Brannock & 

Humphries, Tampa, and Thomas P. Angelo of Angelo & Banta, P.A., Fort 

Lauderdale, for appellee.

WARNER, J.

We are asked to decide whether it was error for the trial court to include 

post-offer prejudgment interest in calculating the statutory threshold 

amount to trigger an award of attorney’s fees pursuant to the offer of 

judgment statute, section 768.79, Florida Statutes (2014). The 

prejudgment interest was part of the judgment entered for the plaintiff, 

and the amount of the judgment exceeded, by 25%, the offer made by the 

plaintiff to settle the case, entitling it to attorney’s fees. The appellant, 

defendant below, contends that the supreme court has already decided 

this issue in its favor, and post-offer interest must be excluded in 

calculating the amount recovered by the plaintiff. Language in supreme 

court opinions does suggest that result, although the court has never 

squarely addressed this issue. Were we writing on a clean slate, we would 

interpret the statute as written and include post-offer prejudgment
2

interest. But as the supreme court opinions appear to exclude post-offer 

prejudgment interest in the judgment obtained, we are bound to follow the 

supreme court. Therefore, we reverse, but certify conflict with a district 

court of appeal opinion and also certify a question of great public 

importance.

In 2013, the appellee/plaintiff, CCM Condominium Association, Inc., 

sued the appellant/defendant, Petri Positive Pest Control, Inc., for 

negligence and breach of contract regarding the parties’ contract for Petri 

to address a termite problem at CCM’s property. Petri answered, denying 

the allegations. CCM served an amended offer of judgment in 2014, 

pursuant to section 768.79, Florida Statutes. It offered to settle all of 

CCM’s claims for damages, including punitive damages, attorney’s fees, 

costs, and interest, for $500,000. Petri rejected the offer. 

Following a trial in 2016, the jury found in favor of CCM on its breach 

of contract claim, and it awarded CCM $551,881 in damages. CCM 

submitted a proposed final judgment, requesting $551,881 in damages,

and an additional $84,295.60 in prejudgment interest calculated by an 

accountant, with a per diem rate for each day. This amount included both 

pre-offer of settlement and post-offer of settlement interest. The court 

entered judgment based on those calculations for a total of $636,326.90. 

CCM then moved to tax costs, which the court granted in the amount of 

$73,579.21.

CCM moved for attorney’s fees pursuant to section 768.79, Florida 

Statutes, the offer of judgment statute, contending that its judgment of 

$636,326.90, inclusive of interest, exceeded the offer by more than 25%. 

Thus, CCM was entitled to an award of attorney’s fees incurred. Petri 

objected, contending that in accordance with White v. Steak & Ale of 

Florida, Inc., 816 So. 2d 546 (Fla. 2002), the amount of the plaintiff’s total 

recovery included only its attorney’s fees, costs, and prejudgment interest 

accrued up to the date of the offer of judgment. Without the post-offer 

prejudgment interest and costs, CCM had not met the threshold amount 

of $625,000.

The court granted CCM’s motion for attorney’s fees. It concluded that 

White addressed only pre-offer costs in relation to a plaintiff’s “judgment 

obtained,” not prejudgment interest. Relying on Perez v. Circuit City Stores, 

Inc., 721 So. 2d 409 (Fla. 3d DCA 1998), the court ruled that prejudgment 

interest is included in the “judgment obtained” for section 768.79 

purposes. The court held a hearing to determine the amount of attorney’s 

fees, and the parties ultimately agreed on the amount, leaving the issue of 

entitlement for this appeal.
3

Two principles of review apply to this case. On the one hand, we review 

de novo issues of statutory interpretation. Diamond Aircraft Indus., Inc. v. 

Horowitch, 107 So. 3d 362, 367 (Fla. 2013). Appellate courts first analyze 

the plain meaning of the language of a statute, finding the legislative intent 

from the statute’s actual text. Id. If the statute’s language is clear, the 

court need not resort to the rules of statutory interpretation or 

construction. Id. On the other hand, it a longstanding principle of law 

that the district courts of appeal must follow the opinions of the supreme 

court. State v. Hayes, 333 So. 2d 51, 53 (Fla. 4th DCA 1976), cited with 

approval in Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992). In this case,

these two principles of appellate review collide.

Section 768.79, Florida Statutes (2014), governs offers of judgment and 

provides:

(1) In any civil action for damages filed in the courts of this 

state, if a defendant files an offer of judgment which is not 

accepted by the plaintiff within 30 days, the defendant 

shall be entitled to recover reasonable costs and attorney's 

fees incurred by her or him or on the defendant's behalf 

pursuant to a policy of liability insurance or other contract 

from the date of filing of the offer if the judgment is one of 

no liability or the judgment obtained by the plaintiff is at 

least 25 percent less than such offer, and the court shall 

set off such costs and attorney's fees against the award. 

Where such costs and attorney's fees total more than the 

judgment, the court shall enter judgment for the defendant 

against the plaintiff for the amount of the costs and fees, 

less the amount of the plaintiff's award. If a plaintiff files 

a demand for judgment which is not accepted by the 

defendant within 30 days and the plaintiff recovers a 

judgment in an amount at least 25 percent greater 

than the offer, she or he shall be entitled to recover 

reasonable costs and attorney's fees incurred from the 

date of the filing of the demand. If rejected, neither an 

offer nor demand is admissible in subsequent litigation, 

except for pursuing the penalties of this section.

. . . .

(6) Upon motion made by the offeror within 30 days after the 

entry of judgment or after voluntary or involuntary 

dismissal, the court shall determine the following:
4

(a) If a defendant serves an offer which is not accepted by the 

plaintiff, and if the judgment obtained by the plaintiff is at 

least 25 percent less than the amount of the offer, the 

defendant shall be awarded reasonable costs, including 

investigative expenses, and attorney's fees, calculated in 

accordance with the guidelines promulgated by the 

Supreme Court, incurred from the date the offer was 

served, and the court shall set off such costs in attorney's 

fees against the award. When such costs and attorney's 

fees total more than the amount of the judgment, the court 

shall enter judgment for the defendant against the plaintiff 

for the amount of the costs and fees, less the amount of 

the award to the plaintiff.

(b) If a plaintiff serves an offer which is not accepted by the 

defendant, and if the judgment obtained by the plaintiff is 

at least 25 percent more than the amount of the offer, the 

plaintiff shall be awarded reasonable costs, including 

investigative expenses, and attorney's fees, calculated in 

accordance with the guidelines promulgated by the 

Supreme Court, incurred from the date the offer was 

served.

For purposes of the determination required by paragraph 

(a), the term “judgment obtained” means the amount of the 

net judgment entered, plus any postoffer collateral source 

payments received or due as of the date of the judgment, 

plus any postoffer settlement amounts by which the verdict 

was reduced. For purposes of the determination 

required by paragraph (b), the term “judgment 

obtained” means the amount of the net judgment 

entered, plus any postoffer settlement amounts by which 

the verdict was reduced.

(emphasis added). The statute requires the plaintiff to “recover[] a 

judgment” exceeding a threshold amount, and the “judgment entered” is 

the amount from which to calculate whether a plaintiff or defendant has 

met the respective threshold for an award of attorney’s fees. The 

“judgment entered” is easily understood—the final judgment entered in the 

case by the court, its plain meaning. The statute does not refer to the 

amount of the offer except to state that the judgment “recovered” must be 

more (or less) than the offer by a certain percentage. It is easy to calculate. 

Included in that judgment are all of the elements of damages recovered in 

a case. This includes prejudgment interest where applicable. “[S]ince at 
5

least before the turn of the century, Florida has adopted the position that 

prejudgment interest is merely another element of pecuniary damages.” 

Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 214 (Fla. 1985)

(footnote omitted); Phillips v. Parrish, 585 So. 2d 1038, 1039 (Fla. 1st DCA 

1991) (approving the inclusion of prejudgment interest to the date of the 

final judgment in determining whether the threshold amount of section 

768.79, Florida Statutes, was met). In this case, the amount of the 

judgment entered was $636,326.90, inclusive of prejudgment interest to 

the date of judgment, none of which was contested or appealed. That 

amount was more than 25% greater than CCM’s offer of judgment. Based 

upon the plain meaning of the statute, CCM was entitled to its award of 

attorney’s fees.

Petri, however, contends that for purposes of determining whether CCM 

met the threshold, the post-offer prejudgment interest should not be 

considered, even though it is part of the “judgment entered.” There is 

nothing in the statute about deductions from the “judgment entered,” 

except for “postoffer settlement amounts by which the verdict was 

reduced.” § 768.79(6)(b), Fla. Stat. Post-offer prejudgment interest does 

not meet that definition. Instead, Petri argues that the supreme court has 

created its own formula for calculating whether a plaintiff or defendant 

has met the threshold, something which is not contained in the text of the 

statute. A review of the supreme court case law shows that the court does 

appear to have gone beyond the statutory language to create a different 

threshold for attorney’s fee awards under the statute.

In White v. Steak & Ale of Florida, Inc., 816 So. 2d 546, 548 (Fla. 2002), 

the court considered “whether, under the offer of judgment statute, section 

768.79, Florida Statutes (1993), pre-offer taxable costs are included in 

calculating the ‘judgment obtained’ for the purpose of determining whether 

the party making the offer is entitled to attorneys’ fees under section 

768.79.” During the case, a personal injury suit,1 the defendant, Steak 

and Ale, made an offer of judgment of $15,000, which was rejected. Id. At 

trial, the jury awarded the plaintiff $8,025, for which judgment was 

entered. Id. White also obtained a judgment for his pre-offer costs of 

$4,243. Id. The combined total of the two judgments of $12,268 was more 

than 75% of the offer of $15,000 (with a 25%-of-offer threshold of $11,250). 

Id. If the cost judgment were not included, then Steak and Ale would be 

entitled to an award of attorney’s fees. Id.

 

1 Prejudgment interest is not authorized for damages awarded for personal 

injuries. Argonaut, 474 So. 2d at 214 n.1.
6

The supreme court resolved a conflict among the districts by holding 

that the cost judgment for pre-offer costs was part of the “judgment 

obtained” under the statute, approving Perez v. Circuit City Stores, Inc., 

721 So. 2d 409 (Fla. 3d DCA 1998), rev. dismissed, 729 So. 2d 390 (Fla.

1999). Id. at 548-50. It then determined that “common sense, fairness, 

and the purpose of the offer-of-judgment statute” led the court to the 

conclusion that the judgment for costs should be included in the net 

judgment entered for purposes of section 768.79. Id. at 550. In White, 

where there were judgments entered for both the costs and the jury verdict, 

the combined “judgment entered” or “judgment obtained” exceeded the 

offer by more than the statutory threshold. Id. at 551.

Had the court simply stated that the cost judgment together with the 

judgment for damages exceeded the threshold, the opinion would have 

been consistent with the plain meaning of “judgment entered” or 

“judgment obtained.” The opinion went further, however. It relied on 

Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So. 2d 

420, 421-22 (Fla. 1994), in which, considering section 627.428 regarding 

attorney’s fees awardable to a prevailing insured in an action against an 

insurance company, the court said:

[A]ny offer of settlement shall be construed to include all 

damages, attorney fees, taxable costs, and prejudgment 

interest which would be included in a final judgment if the 

final judgment was entered on the date of the offer of 

settlement.

Id. at 550-51. The court in White further found: 

We reaffirmed this principle in our recent decision in 

Scottsdale Insurance. Co. v. DeSalvo, 748 So. 2d 941, 944 n.3 

(Fla. 1999), where we explained that the plaintiff’s “recovery” 

must be added to its “attorney fees, costs, and prejudgment 

interest” accrued up to the date of the “offer” to determine the 

total “judgment.” It is this judgment to which the offer must 

be compared in determining whether to award fees and costs. 

Id.

Id. at 551 (footnote omitted). The White court then concluded:

[T]he “judgment obtained” pursuant to section 768.79 

includes the net judgment for damages and any attorneys’ fees 

and taxable costs that could have been included in a final 

judgment if such final judgment was entered on the date of the 
7

offer. Thus, in calculating the “judgment obtained” for 

purposes of determining whether the party who made the offer 

is entitled to attorneys’ fees, the court must determine the 

total net judgment, which includes plaintiff’s taxable costs up 

to the date of the offer and, where applicable, the plaintiff’s 

attorneys’ fees up to the date of the offer.

Id. (emphasis added). Thus, the court did not use the judgment actually 

entered or recovered in accordance with the statutory language, but it 

directed the calculation of a different amount based upon what might have 

been a final judgment at the time that the offer was made. However, the 

court did not include in this calculation any direction regarding 

prejudgment interest.

While the court relied on Danis and Scottsdale Insurance Co., section 

627.428 is not the same as section 768.79. Danis established that under 

section 627.428, an insured is a prevailing party only when the insured 

obtains a judgment in excess of any offer of settlement tendered by the 

insurer. Danis, 645 So. 2d at 421. The court was defining what it meant 

to prevail in suits against an insurance company; it was not construing 

what “judgment entered” or “judgment obtained” meant under section 

768.79.

Nevertheless, in Shands Teaching Hospital and Clinics, Inc. v. Mercury 

Insurance Co. of Florida, 97 So. 3d 204, 214 (Fla. 2012), the court added 

to the White formula in briefly determining that an insurer was not entitled 

to attorney’s fees pursuant to an offer of judgment. It noted that, “We have 

interpreted the ‘judgment obtained’ under section 768.79 to include ‘the 

total net judgment, which includes the plaintiff’s taxable costs up to the 

date of the offer and, where applicable, the plaintiff’s attorneys’ fees up to 

the date of the offer.’” Id. (citing White, 816 So. 2d at 551). The court then 

quoted with approval the trial court’s final judgment in which the court 

had applied the formula of White, “adding to the amount of damages 

recovered the attorney’s fees, costs and pre-judgment interest accrued up 

to the date of the proposal for settlement.” Id. (emphasis added). Based 

upon that calculation, the plaintiff had exceeded the threshold amount, 

and the insurer was not entitled to attorney’s fees. Id. The supreme court 

appears to have approved the inclusion of pre-offer prejudgment interest 

in the calculation of “judgment obtained” under the statute, even though 

neither discussed this, noted that prejudgment interest was not included 

in White’s formula, nor specifically held that post-offer prejudgment 

interest was excluded.
8

In Shands, the supreme court’s approval of the trial court’s denial of 

fees rested on the inclusion of pre-offer prejudgment interest in the White 

formula. Thus, we conclude that this cannot be treated as mere dicta. We 

are therefore bound to follow the supreme court’s opinion. See Pardo.

Nevertheless, we are troubled by how far the formula created in White 

strays from what we believe is the plain meaning of the statute.

Our opinion, that prejudgment interest may only be included in the 

White formula up to the time of the offer, is based on our tenuous 

conclusion that Shands allows for inclusion of only pre-offer prejudgment 

interest in the threshold calculation for purposes of section 768.79. As 

such, our opinion now conflicts with Perez, which the supreme court 

approved in White, albeit on the issue of inclusion of costs in the judgment. 

In Perez, the court included prejudgment interest without limiting it to the 

pre-offer portion of the judgment. Perez, 721 So. 2d at 410 n.2. It also 

conflicts with Phillips, which directly held that all prejudgment interest 

was included in the threshold amount. Phillips, 585 So. 2d at 1039.

We also think that the proper interpretation of the offer of judgment 

statute is a question of great public importance, as it is so widely used and 

is an important tool for settlement of litigation. We therefore certify conflict 

with both Perez and Phillips. We also certify the following question to the 

supreme court:

FOR PURPOSES OF CALCULATING WHETHER A PLAINTIFF 

HAS MET THE THRESHOLD AMOUNT OF DIFFERENCE 

BETWEEN AN OFFER OF JUDGMENT AND THE JUDGMENT 

ENTERED FOR PURPOSES OF SECTION 768.79, FLORIDA 

STATUTES, MUST POST-OFFER PREJUDGMENT INTEREST 

BE EXCLUDED FROM THE AMOUNT OF THE “JUDGMENT 

OBTAINED”?

GROSS, J., and WEISS, DALIAH, Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.